M VARALAKSHMI Vs. K MAHADEVA SASTRY

JUDGEMENT

(1.) CMP No. 14388 of 2003 is filed to condone the delay of 81 days in representing the above CCCA (SR) while CMP No. 15758 of 2003 is filed to condone the delay of 369 days in filing the above CCCA (SR) against the order dated 18.9.2001 passed in OS No.282 of 2001 by the learned XIII Add1. Chief Judge (Fast Track Court), City Civil Court, Hyderabad.

(2.) The appellant herein who is the plaintiff before the Courts below entered into provisional agreement of sale with the first respondent herein, since died, for purchase of Flat No. 12, Block No.32 MIGH, II Phase, situated at Baghlingmpally, Hyderabad, who purchased the same from the second respondent herein under self financing scheme, for a total consideration of Rs.72,000/-. It is averred that the petitioner herein has paid the entire amount which was acknowledged by the first respondent and executed a pacca agreement of sale dated 4.9.1985 in favour of the petitioner and delivered possession of the land on the same day and since that time the petitioner has been in possession of the house, but since the first respondent did not obtain sale deed from the 2nd respondent Housing Board, he did not execute the sale deed in favour of the petitioner. The petitioner, therefore, filed OS No.756 of 1993 before the II Addl. Judge, City Civil Court, Hyderabad, for specific performance of the agreement of sale dated 4.9.1985 and to execute a sale deed in favour of the petitioner. She also filed IA No.728 of 1993 for temporary injunction restraining the 1st respondent from alienating the flat which was granted by order dated 14.7.1993. While so, the first respondent died on 29.1.1997 and the Respondents 3 to 7 are his legal heirs. The petitioner was not aware of the death of first respondent until 18.9.1997 on which date a memo came to be filed before the Court stating the said fact. The petitioner, therefore, filed LA (SR) Nos.1196 and 1198 on 17.3.1998, which were returned by the office with certain objections. The Counsel has not taken return of those papers for a considerable time from the office due to inadvertence. Therefore, fresh applications vide IA Nos.6 and 7 of 2000 were filed on 22.12.1999 seeking to condone the delay in filing the L.R. petition and to set aside the abatement order, respectively. The L.R. petition in LA No. 1375 of 2000 was also filed. In the meantime, the suit along with I.As. was transferred to the Court of XIII Add1. Chief Judge (Fast Track Court), City Civil Court, Hyderabad, and the same was numbered as OS No.282 of 2001 and IA Nos. were numbered as IA Nos.53, 54 and 55 of 2001 respectively. While, the matter stood thus, on 5.12.2000, the Respondents 3 to 7 i.e., L.Rs. of the first respondent herein were called and they were set ex parte for their absence and subsequently, it was allowed on payment of costs of Rs.500/-. The Counsel for the petitioner offered to pay the costs to the 5th respondent, who is son of the first respondent and an Advocate. It is further averred that the Counsel for the petitioner was directed to deposit the costs by 29.1.2001 in the Civil Court Deposit, and the Respondents 3 to 7 filed IA No.25 of 2001 to set aside the ex parte order dated 5.12.2000. The Court below dismissed IA No.53 of 2001, which was filed to condone the delay in filing the petitioners to set aside the abatement caused due to ' the death of the first respondent, without considering the facts and circumstances more particularly when the conditional order dated 5.12.2000 was not complied with and, therefore, the Court has no jurisdiction to suo motu set aside the order passed in IA No.6 of 2000 and consequently, the suit was also dismissed as abated.

(3.) Aggrieved by the dismissal order, CCCA (SR) was filed with a petition to condone the delay in filing the application. In the affidavit, filed in support of the petition, it is averred that the Counsel for the petitioner also died of cardiac arrest and IA No.53 of 2001 was dismissed by order dated 18.9.2001 for non-prosecution. The petitioner was not aware of the order and, therefore, the delay that is caused in filing these applications is neither wilful nor due to negligence and if the delay is not condoned irreparable loss would result as the entire sale consideration has been paid to the first respondent.